{"id":204762,"date":"1962-10-28T00:00:00","date_gmt":"1962-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/syed-younsuf-akbar-hussaini-and-vs-syed-murtuza-akbar-hussaini-and-on-28-october-1962"},"modified":"2017-03-14T22:14:42","modified_gmt":"2017-03-14T16:44:42","slug":"syed-younsuf-akbar-hussaini-and-vs-syed-murtuza-akbar-hussaini-and-on-28-october-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/syed-younsuf-akbar-hussaini-and-vs-syed-murtuza-akbar-hussaini-and-on-28-october-1962","title":{"rendered":"Syed Younsuf Akbar Hussaini And … vs Syed Murtuza Akbar Hussaini And … on 28 October, 1962"},"content":{"rendered":"
Andhra High Court<\/div>\n
Syed Younsuf Akbar Hussaini And … vs Syed Murtuza Akbar Hussaini And … on 28 October, 1962<\/div>\n
Equivalent citations: AIR 1983 AP 225<\/div>\n
Author: R Rao<\/div>\n
Bench: Raghuvir, R Rao<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Rama Rao, J.<\/p>\n
 1. The  appellants are defendants 1 to 3.  The plaintiff filed a suit for  partition and separate possession of 1\/4th share of the properties  the averments in the plaint are as follows: The plaintiff’s father  late syed Hussain Akbar Hussain was  the  sole and absolute owner of the suit   premises.  He died leaving the  plaintiff and the defendants as heirs.  Plaintiff and 2nd  defendant are the sons through his first wife  Bibi sabi.  Defendants 1 and  4 are the son and  daughter of second  wife 3rd defendant.  The  plaintiff and defendants are in possession of hte property.  The shares of the plaintiffs, 1st defendant and 2nd defendant are 1\/4th share each  and the  defendants 3 and  4 1\/8th share each.\n<\/p>\n
2.  The defendants 1 to 3 filed a written statement stating  as follows: defendants 1 to 3 are residing  in a house No. 4-3-1975   which is made subject matter of partition by the  plaintiff.  On  the death of the plaintiff’s father, the  3rd defendant became  entitled to dower amount of 85 and  half tolas of gold.  Pursuant  to settlement the defendants 1 to 4 took actual possession of the house  No. 4-3-75, and  78 excluding  two rooms  the 3rd defendant is in joint  possession with defendants 1, 2 and 4 in lieu of payment  of dower  and  she is entitled  to retain such possession the plaintiff has bee in  possession of the two rooms  and collecting rent  for one from the tenants.  As  there is no joint possession the question of partition and right to a  share does not arise.  In reply to the notice sent by the  plaintiff it was stated by defendants 1 to 3 that the  plaintiff is in possession of more than his share if the  shares are divided  taking  into consideration the dower amount payable to the  3rd  defendant.\n<\/p>\n
3.  On the above pleadings  the  following issues are framed:\n<\/p>\n
1.   What are the  properties available for partition?\n<\/p>\n
2.  Whether the settlement amongst the heirs and de facto partition pleaded in the written  statement  is true and binding  on plaintiff?\n<\/p>\n
3.  Whether the dower amount of 3rd defendant  is to be paid  out of the estate and if so what is the amount?\n<\/p>\n
4.  Whether  plaintiff is in  joint  possession or not?\n<\/p>\n
5.  Whether the court-fee paid is correct?\n<\/p>\n
6.  Whether  the suit is barred by time?\n<\/p>\n
7.  To what relief?\n<\/p>\n
The learned III Additional Judge, city civil  Court, secunderabad found  that  there  was no settlement as  pleaded by the  defendants with regard to  the  arrangement of  the  enjoyment of the  house and  it is also  not  true  that  her  possession  of the  house is in lieu of her  claim for  dower and as such the claim for dower is barred by limitation.  It  is also held that the property has to be divided without taking   into consideration  the  claim for ‘ Mehar’ or dower.  Ultimately  on issue No. 2 it is  held   that the  settlement amongst  the  heirs and the de  facto partition pleaded in the written statement is not true and not binding  on the  plaintiffs and on issue No. 3 it is held that the dower amount  of  3rd   defendant  need not be paid  out of the  estate.  On  issue No. 4  it is  held  that the plaintiff is  in  joint possession of hte house.  It is  further held  that the payment  of courtfee is  correct.  It is further held that the  question of limitation in a  suit for  partition does not   arise  and the  plaintiff is  entitled  to the relief  of partition and separate possession of his 1\/4th share  on the basis of these findings the suit is decreed  for partition and   separate posession o f1\/4th share of the plaintiff.  On  appeal at the instance of  the defendants the learned  single  Judge upheld  the findings of the  trial  Court and confirmed the decree and  judgment.\n<\/p>\n
4.  The learned counsel for  the  appellants contended  that the factum of possession of  portion of the  premises entitles her to claim dower at the time  of partition of the  properties  and as such is not  barred by limitation.  The learned counsel for the respondent contended that  mere possession   of the   properties  does not  entitle  the  3rd  defendant  to claim  dower and  the period   of limitation prescribed   for claiming the dower is  three  years from  the date  of death of the husband and further  in view  of the fact that the earlier partition set up  by the  defendants is disbelieved the possession  of the 3rd  defendant  pursuant to the said  partition is unlawful.\n<\/p>\n
5.  At the  out set the reference  to the finding of the Court  below that  the settlement among  the heirs  and de  facto  partition is not  true and not binding  on the plaintiff is  necessary.  This  finding is approved  by the  learned single  Judge.  We are  not inclined  to disturb  this finding  and as such   the  partition set up  is  not  true.  On the  basis  of this   finding   the  learned  counsel for  the  appellants  seeks  to spin out  a contention that when the  partition is  untrue and the possession by the 3rd   defendant siad to  be pursuant  to the siad  partition cannot also be  relied  upon.  It must be stated that the  possession of   the 3rd defendant is not in dispute  and  so it must be considered  whether  the  possession  simpliciter without  linking  it to unequivocal  acceptance of dower  can aid the  defendant  to set up  a  claim for dower  without  bar of limitation.  The relevant  provisions of the mohammadan law touching this aspect may be  considered section  292  provides that if the dower  is not  paid, the  wife and after  her death  her heirs can claim the dower and the period   of limitation for a  suit to recover  prompt dower is  3 years from the date when the dower  is demanded and refused or when the  marriage is dissolved  by  death or  divorce and the  period of limitation to recover  deferred dower’ is three years   from the  date when  the marriage is dissolved   by death of rivorce and the period of limitation to recover deferred dower is three years from  the  date when  the  marriage is dioolved  by death or divorce.  Section 296  provides that the claim for dower does not   entitle  the  wife to a charge on any specific property of her deceased husband without any force or fraud  in lieu  of her dower,  she  is entitled to retain  the  possession of the  property until  the  dower is satisfied and  this right  is as  against   the heirs of her husband and against the creditors of  ehr husband.  Section 310  provides  that the  right  to  widow to retain  possession under a claim for dower does  not entitle her to alienate the property by sale,  mortgage  gift or otherwise the learned counsel for the appellant in support of the proposition that the factum of possession of the property  of  the husband  is sufficient  for empowering  the widow  to retain the  property till the dower is  satisdied, relied upon the decision of the Madras High Court  reported in Beeju Bee v. Syed  Moorthiya  saheb, (1920)  ILR  43  mad 214  (AIR  1920  Mad  666)  (FB)  in this case the  widow who was in possession  of properties of her  husband sold in band sold in  1906  one item  of the properties in her  possession to the 2nd  defendant  under sale deed which   recited that the sale  was made for the  mehardebt due to her from her husband  according   to MohammedanLaw,   for discharging  other debts and for family expenses.   The widow   also  sold  another  item out of the  properties to the 3rd defendant  the plaintiff impeached the  sales  as invalid the trial Court held that the  sales were not  binding on  the  plaintiff and  passed a decree for partition.  On appeal the judgment  was confirmed.  On second appeal   the finding   was called for  by the  division Bench consisting of PHIlips an d Kumaraswami  Sastri.  JJ on the  following  issue:\n<\/p>\n
  “whether mehar was due  to the 1st  defendant on the date of  her husband’s death and  If so  what was its  amount?”  pursuant  to this  requisition the subordinate  Judge found  that the dower or  mehar  was due  to the 1st  defendant on the death of her husband and that it  was 39 tolas of pure gold.   Subsequently the second  appeal was referred tothe  Full Bench   in view  of  the  conflicting decisions.  It was found that the Mehar due  on the  date of husband’s death was  on her   husband’s  death was not paid  and there was no evidence that on her  husband’s death  she was put in  possession of the property under any agreement  between herself and other  heirs  as to  the dower and it was further  found that  she was in possession from the date of  her  husband’s   death till she  sold the house and the sale deed purports to be for the purpose of paying  herself  the dower.  On these facts and  circumstances the Full Bench of  the   Madras High Court consisting of sir  Abdul  Rahim, Kt. Offg., chief  Justice Mr. Justice oldfield and Mr. Justice, Mr. Justice  oldfield  and Mr. Justice seshagiri ayyar held  that a widow  with the  express or implied consent  of the other  heirs  of  her husband   obtains possession of the  whole or any part of his estate in  satisfaction of or as security of her dower, is entitled to retain  such possession till her   dower is paid.  It is  held that the  possession must be lawful   and should  not  have been  acquired by fraud  or by force.  In Mt. Maina v. Ch. Vakil Ahmad (AIR  1925 pc 63)  it is  held  that   where  a  mahommedan   widow   obtains possession of  her  husband’s estate wihout  force or fraud  she is  entitled  to retain possession till her dower debt is paid.   The allahabad  High Court in Mt.  Imtiaz  Begum.   V. Abdul  Karim,  (AiR   1930 All  881)  held that  widow can retain  possession against  other heirs of  of husband  till the   debt is paid  or satisfied out of   usufruct of property and in order to  entitle her to retain possession it is not necessar that  her possession  should have been  originated  with the  consent  express or implied of her  husband  or her husband’   heirs  the allahabad High Court  followed the full bench  decision of the madras High Court in (1920) ILR 43  Mad 214: (AIR 1920  Mad  666)  (supra)   and  stretched the  principle by holding  that the possession  simpliciter without fraud or force entitles the widow  to retain   possession till the dower is satified  and   possession with consent  express  or implied or under an agreement  with her  husband  in  lieu of  dower is not  imperative.  In Nawab  begum v. Hussain Ali  Khan (AiR  1937  Lah  589)  it is  held that the widow  has a  first charge on the property of  the   deceased so long as the dower debt,  is not  paid.  In Karpore chand.  V. Kidar Nissa   the Supreme Court was concerned  with the   issue    whether  dower debt can be given priority over other debts on  any equitable  consideration  and in  that context it was  held that the dower debt cannot be given   any preferential     charge  on the  estate and cnstitutes a debt payable paripassu  with the   demands  of  other creditors   and even   in  a situation where the widow is in possession  of her  estate in lieu   of her  claim  for  dower  witht eh consent of  the  other heirs  or otherwise  is not entitled to priority   as against  his other unsecured  creditors.   In the  context of considering  this   issue the Supreme Court referred to  the  decision of  the  privy council    in AIR  1925  pc  63  (supra) and  also   AIR  1930   All 881 (supra)  with   approval.\n<\/p>\n
6.   The  consensus of judicial opinion   that emereges from   the  decisions considered hereinbefore  is that if the widow  is inducted into possession either by consent or otherwise except  by force  or fraud  she is entitled   to retain the possession  in lieu  of dower  payable    to her  andthe limitation of three years  from the date of the death of  the  husband does not operate  in the event  of possession  of the  property by the  widow<\/p>\n
7.   The learned counsel for the  respondent contended that the  possession set up in   3rd   defendant is intertwined with the  plea of partition  and  when  partition is disbelived the  pack age  deal  collapsed  and the  possession as a sequel  to partition  cannot stand in isolation and as such the  plea of possession also should  have been negatived.  It is true  that the trial Court as well  as the learned single Judge  held  that the plea of partition is unfounded.  But,  however at the same time  the factum   of possession  pleaded by hte  3rd  defendant is not dislodged and the  concurrent  findings have been  given that the  3rd defendant   is in   possession of a portion of the house  and in view  of the same she is entitled to  retain   possession until   the dowere claim is   satisfied therefore the claim for   dower by the   3rd defen dant   is not barred by limitation.  The property is liable  for partition subject tothe  satisfaction of claim for  ‘mehar’  or  dower.\n<\/p>\n
8.  The  judgment and decree of   the  trial  Court and  the learned  single judge are set aside.  Appeal  is allowed No costs.\n<\/p>\n
9. Appeal  allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Andhra High Court Syed Younsuf Akbar Hussaini And … vs Syed Murtuza Akbar Hussaini And … on 28 October, 1962 Equivalent citations: AIR 1983 AP 225 Author: R Rao Bench: Raghuvir, R Rao JUDGMENT Rama Rao, J. 1. The appellants are defendants 1 to 3. The plaintiff filed a suit for partition and separate possession […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,8],"tags":[],"class_list":["post-204762","post","type-post","status-publish","format-standard","hentry","category-andhra-high-court","category-high-court"],"yoast_head":"\nSyed Younsuf Akbar Hussaini And ... vs Syed Murtuza Akbar Hussaini And ... on 28 October, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/syed-younsuf-akbar-hussaini-and-vs-syed-murtuza-akbar-hussaini-and-on-28-october-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Syed Younsuf Akbar Hussaini And ... vs Syed Murtuza Akbar Hussaini And ... on 28 October, 1962 - 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